SUAREZ AGPALO FERNANDEZ & AQUINO LAW OFFICESSan Jose, San Juan Southern Leyte

05 July 2015

MR BEN NAYMandaue City6014 Cebu

Dear Mr. Nay,

Good Day

This is a response to your request for a legal opinion regarding your complaint against Fr. Ramon of San Pedro Church.Before we can pursue in answering your queries let me just restate the facts regarding your case. First you have stated that Fr. Ramon according to you engaged you for a job to maintain and keep the church and its premises clean you were also tasked to water the plants at the church faade and as means of compensation your are paid P200.00 a day for your duty. You have been doing this for the past 7 years. But after you were sick and were unable to attend to your duties you were replaced without notice and were told that your services were no longer needed and you were dismissed.Now regarding your case you wanted to be clarified regarding certain issues like: 1) Whether do you have a cause of action against Fr. Ramon of San Pedro Church 2) Whether you are an employee of Fr. Ramon of San Pedro Church; 3) Whether you can possibly file a labor case before the labor tribunal against Fr. Ramon?; and 4) Whether you are entitled to the labor standards for service incentive leave pay, 13th month pay and wage differentials as provided by law.

Under Article XIII Section 3 of our constitution it provides that:Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, andpromote full employment and equality of employment opportunities for all.It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.Thus it can be shown that under our constitution workers as a matter of right have cause of action againts their employers who aggrieved or have deprived them of their rights under the law and services could not be just dismissed without a valid justification .The Labor Code which codifies laws that are related to labor and employment is essential in this kinds of situations and it can only apply if there is an employee employer relationship involved.The determination of whetheremployer-employeerelation exists between the parties is very important. For one, entitlement to labor standards benefits such as minimum wages, hours of work,overtime pay, etc., or to social benefits under laws such as social security law, workmens compensation law, etc., or to termination pay, or to unionism and other labor relations provisions under the Labor Code, are largely dependent on the existence of employer-employee relationship between the parties.Another thing is that the existence of employer-employee relationship between the parties will determine whether the controversy should fall within the exclusive jurisdiction of labor agencies or not. If for example the parties are not employer-employee of each other, respectively, but perhaps partners or associates, then any dispute between them will be not be covered by the jurisdiction of labor agencies but by regular courts.Clearly from the narration of facts it is clear that you are an employee of Fr. Ramon and there exist an employee employer relation between the two of you. Under the Social Security Law (R.A No.1161, as amended) an Employer is defined as any person natural or juridical domestic or foreign who carries on in the Philippines any trade business industry undertaking or activity of any kind and uses the services of another person who is under his order as regard the employment. While an employee on the other hand is any person who performs services for an employer in which either or both mental and physical efforts are used and who receives compensation for such services, where there is an employee and employer relationship. Clearly both you and Fr. Ramon fall within this definition.

But in order to really find out if you and Fr. Ramon have an employee-employer relationship we must first apply the test of determining the existence of employee employer relationship in this case we will apply the four fold test and the two tiered approach; the economic dependency test. In the four fold test it comprises of four elements (a) the selection and engagement of the employer (b) the payment of wages (c) the power of dismissal (d) the employers power of control the employee with respect to the means and methods by which the work is to be accomplished. It is so called the control test absent the power of control there is no employee employer relationship. In your case all the elements of employee and employer relationship are present under the four-fold test.

Using the Two Tiered approach the economic dependency test which has two elements (1) the putative employers power to control the employee with respect to the means and the methods by which the work is to be accomplished (2) the underlying economic realties of the activity or relationship we can also determine that there is an employee and employer relationship between and Fr. Ramon since he exercises the power of control over you with respect to your work and your employment with him is your only means of economic sustenance.

Applying the two tests it is clear that you are an employee of Father Ramon in San Pedro Church, which signifies that you have an employee employer relationship that is essential for the provisions of the labor code to be applied in your situation. Also as you have stated earlier that you have been working for Fr. Ramon for 7 years before you were dismissed entitles you to Labor Standards for Service Incentive Leave pay and 13th Month pay and wage differentials under the law. Art. 95 of the labor code paragraph 1 only states that employee must only render at least 1 year of service to be entitled to this incentives.

Lastly we hope that we were able to answer your concerns and express our gratitude for choosing our Law Firm to consult regarding your legal queries. We hope to hear from you soon

Sincerely yours,

FROILAN JAY C. SUAREZLegal Counsel